On appeal from the New Jersey Commissioner of Education, Docket No. 108-5/11.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012
Before Judges Yannotti and Harris.
Jennifer O'Brien (O'Brien) appeals from a final determination of the Acting Commissioner of Education, which upheld her dismissal from her teaching position in the City of Paterson's school district. We affirm.
O'Brien has been employed as a teacher in the Paterson schools since March 1998. She has a master's degree in education, and certifications as an elementary school teacher and supervisor. Prior to the 2010-2011 school year, O'Brien had been assigned to School No. 29 as a technology coordinator.
At the start of the 2010-2011 school year, O'Brien thought she would be teaching kindergarten at School No. 29. However, she was transferred to School No. 21. O'Brien was initially assigned to teach the fifth grade at that school. In December 2010, O'Brien was assigned to teach the first grade.
There are about seven hundred students in the school, and the student body is almost entirely comprised of minority students, including African-Americans and Latinos. There were twenty-three students in O'Brien's first-grade class. Almost all were six years old. All were either Latino or African-American.
On March 28, 2011, O'Brien posted two statements on Facebook, an internet social-networking site. The first statement was, "I'm not a teacher - I'm a warden for future criminals!" The second statement was, "They had a scared straight program in school - why couldn't [I] bring [first] graders?"
The following day, Frank Puglise (Puglise), the principal of School No. 21, received an electronic-mail message from Carlos Ortiz (Ortiz), the principal at School No. 29, where O'Brien had previously worked. Ortiz forwarded O'Brien's Facebook postings to Puglise and asked if "there is anything we can do about this." Ortiz said that he was "appalled" by O'Brien's statements. Puglise looked into the matter and consulted Luis Rojas, the district's Director of Labor Relations. Rojas obtained a copy of O'Brien's Facebook page.
On March 30, 2011, Puglise confronted O'Brien about the postings. According to Puglise, O'Brien insisted that she did not intend her comments to be offensive, but she was otherwise unrepentant. O'Brien was suspended with pay, pending a complete investigation.
News of O'Brien's Facebook postings spread quickly throughout the district. On the morning of March 30, 2011, two angry parents went to Puglise's office to express their outrage. One parent threatened to remove her child from the school. According to Puglise, the school received at least a dozen irate phone calls. At the end of the day, there was a protest outside the school, attended by twenty to twenty-five persons.
The following day, reporters and camera crews from major news organizations descended upon the school and remained there until late in the afternoon. A larger than usual crowd attended the Home-School Council meeting that evening, and the meeting was principally devoted to the Facebook postings. Parents expressed their outrage concerning the postings, and Puglise reassured the attendees that O'Brien had been removed from the classroom.
On April 14, 2011, the deputy superintendent of schools filed a complaint against O'Brien, charging her with conduct unbecoming a teacher. On May 5, 2011, the district superintendent determined that there was probable cause to support the charges, and if established, were sufficient to warrant ...